United States District Court, D. Delaware
Leroy Lewis Smith. Pro se Petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.
LEONARD P. STARK, District Judge.
Pending before the Court is an Application For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 ("Petition") filed by Petitioner Leroy Lewis Smith ("Petitioner"). (D.I. 1) For the reasons discussed, the Court will dismiss the Petition and deny the relief requested.
A. 1969 Crime
In 1969, Petitioner was convicted of assault with intent to commit rape. (D.I. 12, Del. Dep't. Justice Response to Parole Application dated June 4, 2009, at 1) Although he was sentenced to four years of incarceration, Petitioner was released less than two years into his sentence, on May 24, 1971. He never reported to his probation officer and disappeared. Id.
B. 1971 Crime
On July 17, 1971, nineteen year-old B.J. was alone in her apartment. (D.I. 11 at 4) Petitioner, who was unknown to her, forced his way into the apartment and raped her. B.J. delayed reporting the offense for two days because Petitioner threatened to kill her if she reported it to the police. Petitioner later said of the crime: "My sister lived next door to this girl. I forced my way into her apartment. I was drinking and I don't remember too much. I don't remember what I did." (D.I. 11 at 4) When Petitioner committed this rape, he was still on parole for his 1969 conviction for assault with intent to commit rape. ( Id. ) at 5)
In 1972, Petitioner was convicted of raping B.J. and sentenced to life imprisonment. The Delaware Supreme Court reversed that decision in 1974. See Smith v. State, 317 A.2d 20 (Del. 1974). Thereafter, Petitioner entered a plea to the lesser offense of assault with intent to commit rape. He was sentenced to ten years. (D.I. 12, Del. Dep't Justice Response to Parole Application dated June 4, 2009, at 1) Midway through his sentence, Petitioner was conditionally released. Id. Five months after his conditional release was granted, Petitioner committed the 1980 crimes described below.
C. 1980 Crimes
During the late afternoon on Wednesday, March 19, 1980, sixteen year-old S.M. was walking in the area of Third and Union Streets in Wilmington. Petitioner approached her and introduced himself with a phony name. He asked S.M. if she wanted to smoke some marijuana but she refused his offer and kept walking until she entered a nearby school. A short while later, when she was leaving the school, Petitioner grabbed S.M. She struggled to free herself. Petitioner began choking her, told her he had a gun, and that he would kill her if she did not do as he asked. Petitioner forced S.M. to some neighboring garages and told her to pull down her pants so that he could look at her naked body. At this point, a male friend of S.M. happened upon the two and eventually scared Petitioner away. The friend went to a nearby church to get help. The police were called and the crime was reported.
During this same time-frame, in March 1980, twenty-three year-old R.L. was a female taxicab driver working for the Diamond Cab Company. At approximately 9:30 p.m. on Friday, March 21, 1980, she had just dropped off a rider at Lancaster Avenue and Ford Avenue when Petitioner approached her. Petitioner told R.L. that he had to get to work and wanted her to take him there. R.L. told Petitioner that she was scheduled to pick up another fare but he insisted that he wanted her to drive him to his destination. As Petitioner spoke to R.L., she realized from the odor on his breath that he had been drinking. R.L. tried to use his drinking as an excuse for rejecting his fare, but Petitioner and a friend cajoled her into driving Petitioner. Petitioner entered the cab and gave R.L. an address as his friend walked away.
When they reached the location, Petitioner did not get out. He placed a hard object in R.L.'s right side, told her to continue to drive, and directed her to the foot of East Seventh Street in Wilmington. Once at that location, Petitioner forced R.L. to have sexual intercourse with him. Petitioner then told R.L. to drive to Eighth and Walnut Streets, where he got out of the cab. Before leaving, however, Petitioner threatened to kill R.L. if she told anyone what he had done to her. R.L. drove back to the cab company, reported the rape, gave the police Petitioner's description, and later identified him in a photographic line-up. Petitioner was apprehended shortly ...